Surrender or Tactical Retreat?
The news arrived with its own metaphor: on the eve of the American holiday of Thanksgiving, the Polish government abandoned its attempt to purge the Supreme Court of independent judges.
This particular chapter in the story of Poland’s descent into authoritarianism began last July, when a new law forced into retirement all Supreme Court judges over 65 years of age, effectively gutting the institution and allowing the ruling party, Law and Justice (Prawo i Sprawiedliwość, or PiS) to re-staff the court with their own loyalists. The decision was reviewed by the European Court of Justice, and in mid-October they delivered the obvious ruling that PiS was violating both the Polish constitution and EU standards of judicial independence. Jarosław Kaczyński, Poland’s de facto ruler, stated that the country would respect the ECJ decision, though until this week it was unclear whether he would follow through with that promise. But now it’s official: the Polish parliament (the sejm) has voted to repeal last summer’s law and re-instate the judges who had been forced out. The opposition was given an opportunity to gloat over the most dramatic public retreat PiS has ever made. The headlines were triumphant: “PiS Gives Back the Supreme Court” or “PiS Capitulates”
But why did this happen? Once the ECJ opinion was issued, the old law was null-and-void, and Chief Justice Małgorzata Gersdorf and her colleagues could simply return to work. Why would Mr. Kaczyński make such a public show of retreating before the EU court decision? Answering this question reveals quite a lot about the state of play in Polish politics at this moment. There are two levels to this story, each pointing to a different aspect of the complex machinations that are shaping Poland’s future.
The first level involves a very different sort of judiciary: the court of public opinion. Since coming to power in 2015, it appeared that Kaczyński acknowledged no constraints on his power—not the Polish constitution, not EU rules and procedures, and certainly not the norms of democracy. His success has relied on the conviction that he can violate any rules with impunity, knowing that there are no institutions capable of stopping him. He has governed by the fait accompli, daring his opponents to try to stop him. Since he controls most of the media and all the institutions of administrative and political power in Poland, the only thing anyone can do is stage public protests. PiS just ignores those demonstrations, and the story continues.
The question has always been: how far would PiS go? Up until now, they have enjoyed steady public support in the upper 30s, roughly equivalent to their result in the 2015 elections. This makes them the largest single political party, but far short of a majority. As long as the opposition remains fragmented it might be possible for PiS to retain power, but the risk of defeat would always be present. It has been an open question whether Kaczyński retains a baseline commitment to some sort of democratic legitimacy—enough to restrain him from stealing an election or simply ignoring election results. The local and regional elections earlier this month suggested that he might, in fact, fear going quite that far. The results were dismal for PiS, revealing that they have little support in any of Poland’s metropolitan areas, and that their popularity overall remains well below 40%. Nonetheless, the results have been honored and the voting was apparently free and fair. Since the election, a corruption scandal has pushed PiS support even lower—down to 33% according to the survey firm Kantar Millward Brown. One of the most compelling arguments offered by the anti-PiS opposition during the recent election campaign was that PiS would lead Poland out of the EU—either willingly or by provoking the country’s expulsion. Poles continue to see this as an unlikely scenario, but very few of them want it to happen. After three years of anti-EU rhetoric, PiS is increasingly seen as the party of “Polexit,” and that has alienated most Polish voters.
So if Kaczyński hoped to continue to hold legitimate elections, he needed to stage a show of loyalty to the EU. The vote in the sejm on Wednesday gave the PiS leadership the opportunity to say in public that they disagreed with the ECJ, but that as loyal Europeans they had no choice but to honor the court’s rulings. Prior to this moment, Kaczyński has often said that he rejects the concept of “impossibilism.” In other words, he has viewed all legal constraints as mere technicalities that should always be subordinated to the “national interest.” But now PiS has acknowledged the there are some rules they cannot break: if the European Court of Justice speaks, they must listen. This is radically out of character for them, but it makes sense if they want to refashion themselves for the domestic electorate as supporters of continued EU membership. Between now and next year’s parliamentary elections, they will need to work hard to cultivate that image, and this might have been their first step in that direction.
The second level to this story involves the multifaceted nature of PiS’s judicial “reforms.” The forced retirement of the Supreme Court justices was merely one aspect of a protracted assault on judicial independence, and it wasn’t even the most dangerous aspect. The regime has long since neutralized the country’s Constitutional Tribunal; in fact, that is one of the first things they did after gaining power. Then they seized control of the National Judicial Council, which had heretofore been an independent body of the judiciary responsible for nominating judges. The Ministry of Justice has steadily blocked the careers of judges not loyal to the Party, and ensured that every district court in the country has at least a few PiS loyalists who can be assigned cases of political importance. Finally, PiS created two new judicial institutions: the Disciplinary Chamber and the Chamber of Control and Public Affairs. The former has the authority to investigate accusations of judicial corruption and to remove from the bench those found guilty. The latter is responsible for any complaints about election irregularities or violations of campaign law. Needless to say, both bodies have been staffed by judges selected by the PiS-controlled National Judicial Council. With these two bodies, Kaczyński can manipulate elections if he decides to do so, and remove any judges who stand in his way. The whole controversy over the Supreme Court justices becomes moot.
All of these measures have been challenged by various institutions within the European Union, but the removal of the Supreme Court judges had emerged as the headline controversy. Perhaps it is the easiest to grasp in a short news item, because it has easily identifiable victims. In reality, it’s only the tip of the iceberg. By surrendering in such a demonstrative way on that one issue, the PiS leadership is counting on the EU to declare victory and drop the other complaints. They are also counting on the complexity of these extensive “reforms” to create enough smoke to mislead Poles themselves, and blunt the effectiveness of the opposition’s effort to paint PiS as authoritarian. Internationally this may work. With Hungary always promising to veto any decisive measures against Poland, many in Brussels would be happy to abandon the Sisyphean effort to reign in Kaczyński, particularly as the British withdrawal from the Union reaches its denouement. Domestically this may also work, because it’s hard to rally people around abstract causes like judicial independence—even harder now that PiS has supposedly surrendered on the most infamous (albeit not the most important) aspect of their agenda.
So maybe there’s not so much to give thanks for after all.